Cut a Snowden deal? It could happen

Demonstrators in Germany last month rallied with posters of Edward Snowden and a motto of "freedom instead of fear." (Bodo Mark, EPA photo)

Some of my longtime friends, online and in real life, have turned against my belief that Edward Snowden deserves a break. Now I know how The New York Times feels, although on a smaller scale.

The Gray Lady's editorial board shook up the Web-o-sphere and chattering classes with its New Year's Day call to consider "some form of clemency" for Snowden, the former National Security Agency contract analyst who stole and released a truckload of classified secrets to journalists.

Those journalists include some at The New York Times, by the way, as well as some at The Guardian in Britain, which one-upped the Times that same day by calling for Snowden to receive a full pardon for his "act of courage."

Among those notably outraged by that suggestion, Rep. Peter King, a New York Republican who seldom holds back, slammed Snowden as a "traitor" and the Times as "apologists for terrorists."

King is hardly alone in those sentiments. Opinions about Snowden are deeply and passionately divided in ways that cut across party lines, although polls show more Americans call Snowden a traitor than a hero.

Yet, the idea of cutting a deal with Snowden, now receiving temporary asylum in Russia, is not all that outlandish. It was even floated a week before Christmas by Rick Ledgett, who heads an NSA task force assigned to plug up the damage from Snowden's leaks.

If the data still in Snowden's possession could be secured "and my bar for those assurances would be very high," Ledgett told CBS' John Miller, "(I)t's worth having a conversation about."

In response, President Barack Obama acknowledged in a news conference before his winter break that Snowden's leaks had launched "an important conversation we needed to have."

But the president dodged the question of whether Snowden should still be prosecuted, saying inaccurately that Snowden was "under indictment." Actually, Snowden was named in a criminal complaint which, unlike an indictment, does not require a grand jury and does not have to be sealed.

Obama's own review panel and U.S. District Judge Richard Leon of the District of Columbia have found Snowden's revelations raise serious issues of public importance that were previously hidden and, at worst, illegally concealed.

Judge Leon declared in December that the NSA's sweeping collection of telephone and email metadata is an "indiscriminate" and "arbitrary invasion" that is "almost Orwellian" and almost certainly unconstitutional.

Yet, U.S. District Judge William Pauley in New York later found the telephone dragnet to be legal, since metadata collects information about phone records but not their content.

Even so, the American Civil Liberties Union and others have argued that advancing technology makes the data collection so sweeping as to be almost the same as eavesdropping without a warrant.

Snowden's case and the issues it has raised may well have to be resolved by the U.S. Supreme Court. If the NSA's phone metadata collection is found to be unconstitutional, Snowden's chances to return to the U.S. with little further punishment, if any, rise. If not, he still might be able to leverage a plea deal for a lighter sentence in exchange for his information and stolen data.

Of course, many argue, letting Snowden off easy sets a bad precedent for others who might want to commit the same sort of grandiose stunt. To that, I would argue that the NSA and its congressional oversight appear to have set bad precedents, too.

Now Obama has the awkward duty of explaining our practices to some of the 35 world leaders, including German Chancellor Angela Merkel, whose phones were monitored by the NSA. More disturbing than the monitoring, in my view, is how the president says he was unaware of that operation until it was uncovered during an internal review that he ordered after Snowden's disclosures.

If eavesdropping on dozens of world leaders — which apparently began in the George W. Bush presidential years — is not a big enough deal to bring to the president, one wonders how much else is being hidden from our elected officials.

It's easy to demonize Snowden. It's harder to dismiss the questions that his revelations have raised.

Clarence Page, a member of the Tribune's editorial board, blogs at chicagotribune.com/pagespage.